Heard of a "legal non-cognitivism" that isn't anarchism?

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BenMcLean
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Joined: January 17th, 2012, 11:42 am

Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

I'm not an anarchist. I'm an American Constitutionalist. But I have adopted a position which sounds alot like anarchism as seems to be the logical consequence of taking Constitutional Originalism / Declarationism seriously.

My position on Constitutional law in the United States is that all decisions after Griswold v. Connecticut in 1965 (and possibly some earlier ones too) are a complete joke. Once you have accepted "emanations from penumbras" as a coherent argument then all text is a legal wildcard which can mean literally anything the wizards in black robes want it to mean and all decisions are purely an expression of the arbitrary will of the judges and are not affected in any way by anything actually from the text.

Law is dead and we have killed it. There is no law.

I am an atheist in regards to the false god whose superstitious theology you were taught in law school.

But this is not quite the same thing as anarchism. Anarchism posits that we ought to abolish all government. I am positing the non-existence of the rule of law: that we are in fact ruled by arbitrary despots contrary to popular belief. This is descriptive, where anarchism is prescriptive.

Today, I got to thinking that my view of the current state of Constitutional law needs a new term: "legal non-cognitivism." It's the philosophy of law analogue to ethical non-cognitivism in meta-ethics and theological non-cognitivism in philosophy of religion.

Ethical non-cognitivism posits that all moral language is incoherent, or in other words that all prescriptive claims are incoherent in the sense that they cannot be reasoned about. Theological non-cognitivism posits that the language we use to discuss God or ideas about God and/or religion are meaningless or incoherent in the sense that they cannot be reasoned about. In short, theological non-cognitivism means, "All religious language is incoherent."

I don't believe in either moral or theological non-cognitivsm. But I think I am starting to believe in legal non-cognitivism, the belief that, "All legal language is incoherent." However, I don't want to totally commit in that way to all legal language without exception. I am specifically thinking of Constitutional arguments in the context of the government of the United States. I am a non-cognitivist in regard to Constitutional language working from any post-Griswold precedent. Words don't mean anything after Griswold.

This doesn't mean I think we should abolish all government: it just means I think some large part of legal language is incoherent.

I've Googled the phrase "legal non-cognitivism" and haven't found this anywhere. Does this view have a name that I'm not aware of, or do I get to name it? Most of the time when I think of an idea, I will find out it already has a name in philosophy. This would be the first time I've struck a concept which wouldn't have a name if I really do have an unnamed concept here. Does anyone know if this already has a name?

By the way, this term "legal non-cognitivist" (if it really is something new) wouldn't refer only to people who think legal language post-Griswold is incoherent, but to anyone who thinks any category of legal language is incoherent. There would of course be different flavors of legal non-cognitivism for different categories of legal language thought to be incoherent. So my legal non-cognitivism is of a relatively very limited kind compared to what's conceptually possible. And I hope I have distinguished this view sufficiently from anarchism to show that it is something conceptually distinct from anarchism.

I would love to respect the rule of law: I just don't think that the arbitrary rule we've got now counts as law.
Fooloso4
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Joined: February 28th, 2014, 4:50 pm

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by Fooloso4 »

BenMcLean:
Ethical non-cognitivism posits that all moral language is incoherent, or in other words that all prescriptive claims are incoherent in the sense that they cannot be reasoned about.
That is not what is posited. What it means is that moral claims have no truth value. They still have normative value and are certainly not incoherent. It means that there are no ethical facts that serve as the basis of ethical determination. It does not mean that we cannot reason about ethical questions, only that we cannot resolve these questions by appeal to independent ethical facts.
Theological non-cognitivism posits that the language we use to discuss God or ideas about God and/or religion are meaningless or incoherent in the sense that they cannot be reasoned about. In short, theological non-cognitivism means, "All religious language is incoherent."
That is not what it means. It means that we cannot appeal to God as an entity that we can point to in order to determine the truth of claims about God. We can reason about ideas of God, the point is that we are reasoning about these ideas and about not God. I do not want to get into the various theories of meaning, but will say only that “god talk” is meaningful in the sense that it has significance for those who engage in it.
Words don't mean anything after Griswold.
First, a word about the case. The court found that the state’s banning of contraception is a violation of privacy and that the prohibition against advising someone about the use of contraception a violation of free speech.

If one rejects the concept of penumbra then the only rights are those that are explicit, nothing can be derived by implication. If one rejects the concept of penumbra it becomes questionable whether there is a right to privacy.
Once you have accepted "emanations from penumbras" as a coherent argument then all text is a legal wildcard which can mean literally anything the wizards in black robes want it to mean and all decisions are purely an expression of the arbitrary will of the judges and are not affected in any way by anything actually from the text.
That some rights are derived by implication from those explicitly stated is not a wild card. It is a basic part of the interpretation of texts of law. Such an interpretation, rendered by a supreme court justice, is required to show how it is implicit and that the extension is not contrary to the constitution.

The will of the judges is limited and not arbitrary. Their rulings must be in accord with the law and based on the merits of the arguments presented to them. It is because the law requires interpretation that disagreement arises. Interpretation is a matter of opinion, but a supreme court justice’s opinion is a learned opinion and one that is challenged by other members of the court. This scrutiny assures that the majority will of the supreme court is not arbitrary.
"All legal language is incoherent."
That is complete nonsense. Members of the bar could not communicate if legal language is incoherent.
I am specifically thinking of Constitutional arguments in the context of the government of the United States.
It may be that you cannot understand constitutional arguments but they are anything but inherent. They are rigorously argued.
Does this view have a name that I'm not aware of, or do I get to name it?
Yes, it is called being uninformed. That was not meant to be snark.
BenMcLean
Posts: 50
Joined: January 17th, 2012, 11:42 am

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

Fooloso4 wrote:That is not what is posited. What it means is that moral claims have no truth value. They still have normative value and are certainly not incoherent. It means that there are no ethical facts that serve as the basis of ethical determination. It does not mean that we cannot reason about ethical questions, only that we cannot resolve these questions by appeal to independent ethical facts.
It sounds like you're describing mere non-realism, which is slightly less extreme than total non-cognitivism.
That is not what it means. It means that we cannot appeal to God as an entity that we can point to in order to determine the truth of claims about God. We can reason about ideas of God, the point is that we are reasoning about these ideas and about not God.
That's not theological non-cognitivism: That is simply atheism.
First, a word about the case. The court found that the state’s banning of contraception is a violation of privacy and that the prohibition against advising someone about the use of contraception a violation of free speech.

If one rejects the concept of penumbra then the only rights are those that are explicit, nothing can be derived by implication.
People knew about implication since Aristotle at least. Penumbras were new with Griswold. Therefore, penumbras and implications are not the same thing. You are abusing rhetoric to make an extreme thing seem normal.
If one rejects the concept of penumbra it becomes questionable whether there is a right to privacy.
Yes. It does. There is no right to privacy. There is a protection against unreasonable searches and seizures, which could reasonably be extended by implication to include clandestine survelliance as a type of search. But there is no general "right to privacy" especially not one which includes baby murder. (referring there to Roe v Wade)
That some rights are derived by implication from those explicitly stated is not a wild card.
It is when you can frame literally anything you want as a "right."
Such an interpretation, rendered by a supreme court justice, is required to show how it is implicit and that the extension is not contrary to the constitution.
No they aren't. Once you can make up "emanations from penumbras" you can make any text say anything you want. And if you can make baby murder a "right" then you can make literally anything a "right".
The will of the judges is limited and not arbitrary. Their rulings must be in accord with the law
Since they decide what is and isn't law, this claim is circular.
and based on the merits of the arguments presented to them.
Since you judge those merits based on what the decision is, this really means Caesar can do no wrong.
Interpretation is a matter of opinion,
and therefore arbitrary.
but a supreme court justice’s opinion is a learned opinion and one that is challenged by other members of the court. This scrutiny assures that the majority will of the supreme court is not arbitrary.
Pfft, that is like saying a stacked deck isn't stacked because it was dealt. The bench is stacked!
That is complete nonsense. Members of the bar could not communicate if legal language is incoherent.
Not necessarily. They could still communicate: just not through the legal language of those areas of law which are incoherent. They could communicate in other ways. Haven't you heard the expression "Money talks"?
Yes, it is called being uninformed. That was not meant to be snark.
Are you saying all Originalists are uninformed? Does that include Originalist supreme court justices? Or that what I'm saying doesn't logically follow from Originalism?
Fooloso4
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Joined: February 28th, 2014, 4:50 pm

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by Fooloso4 »

BenMcLean:
total non-cognitivism
?!
That's not theological non-cognitivism: That is simply atheism.
Well, it’s off topic but you are wrong on both counts.
People knew about implication since Aristotle at least. Penumbras were new with Griswold.
Penumbras were not new with Griswold. A penumbra is an implication:
Penumbra is the implied rights provided in the U.S. constitution, or in a rule.(https://definitions.uslegal.com/p/penumbra)
Therefore, penumbras and implications are not the same thing. You are abusing rhetoric to make an extreme thing seem normal.
The term was already in use prior to Douglas using it in Griswold. I am not abusing rhetoric. I just cited a standard legal definition.
But there is no general "right to privacy" especially not one which includes baby murder. (referring there to Roe v Wade)
Well the supreme court disagreed with you. I am not going to let this devolve into another argument against abortion.
Since they decide what is and isn't law, this claim is circular.
The court interprets the law, they do not decide what is and isn’t law. That is not the role of the judiciary. It is the role of the legislative branch. This is basic civics. You really should know this stuff if you are going to make arguments about the law.
Since you judge those merits based on what the decision is, this really means Caesar can do no wrong.
What are you talking about? The justices judge the merits of the arguments presented and render a decision. I have nothing to do with it. I may agree or disagree with a decision just as some of the justices do. It is a decision rendered by a learned but human group of men and women. They are the final arbiter but this does not mean that they can do no wrong.
Interpretation is a matter of opinion,
and therefore arbitrary.
Your opinions may be arbitrary but that does not mean that all opinion is arbitrary. A learned opinion is not an arbitrary opinion.
The bench is stacked!
Certainly in today’s political climate there is an effort on both sides to stack the bench. Some decisions break down as expected - left vs right, liberal vs conservative, but not all. There is a good chance, however, that the court will be tilting more to the right if Republicans get to elect another justice.
Not necessarily. They could still communicate: just not through the legal language of those areas of law which are incoherent.
What is it that you think they are communicating in and about if not the legal language of law?
They could communicate in other ways. Haven't you heard the expression "Money talks"?
Money influences, it does not render legal decisions in legal terminology that is understood by members of the bar.
Are you saying all Originalists are uninformed?


No, just you, based on the many things you continue to show that you are uninformed about.
Or that what I'm saying doesn't logically follow from Originalism?
What you are saying doesn’t logically follow from originalism. An originalist will resist extension by implication, except perhaps when it is something he or she favors. You got that much right, but you are on your own with your notion of legal non-cognitivism.
BenMcLean
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Joined: January 17th, 2012, 11:42 am

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

Fooloso4 wrote:Well, it’s off topic but you are wrong on both counts.
This doesn't communicate anything new other than that you haven't changed your mind on it from looking anything up.
Penumbras were not new with Griswold. A penumbra is an implication
Your evidence doesn't support your claim. You need a pre-Griswold source to prove penumbras were not just a word but a legal doctrine prior to Griswold.
The term was already in use prior to Douglas using it in Griswold.
Not as a legal doctrine, in which context it's nonsense regardless of who coined it.
I just cited a standard legal definition.
You're appealing to the same authority which is here in dispute to establish its authority. The Griswold case is what made it standard, and its objectively nonsense/incoherent a priori no matter its legal status.
Well the supreme court disagreed with you.
Hence the position of legal non-cognitivism.
The court interprets the law, they do not decide what is and isn’t law.
Judicial review is deciding what is and isn't law. Do try to keep up.
That is not the role of the judiciary. It is the role of the legislative branch.
That is how things are supposed to work on paper, not an accurate description of what has actually happened over the past 60+ years.
What are you talking about? The justices judge the merits of the arguments presented and render a decision. I have nothing to do with it. I may agree or disagree with a decision just as some of the justices do. It is a decision rendered by a learned but human group of men and women. They are the final arbiter but this does not mean that they can do no wrong.
What is the difference?
Your opinions may be arbitrary but that does not mean that all opinion is arbitrary. A learned opinion is not an arbitrary opinion.
Yes it is. All opinion which is only opinion and devoid of justification is arbitrary. The learning of the person is not a justification for their opinion.
What is it that you think they are communicating in and about if not the legal language of law?
A number of ways. One would be habit and another would be emotion. Same as moral emotivism, only its legal emotivism.
.
What you are saying doesn’t logically follow from originalism. An originalist will resist extension by implication, except perhaps when it is something he or she favors. That's n got that much right, but you are on your own with your notion of legal non-cognitivism
OK, so what you're saying is that you disagree with originalism and want to claim that it is incoherent and arbitrary because justices associated with it don't consistentky follow it but that "living Constitution" ideological drivel somehow isn't, and is perfectly fine and normal. [Edited by moderator]

-- Updated May 1st, 2017, 11:39 am to add the following --

I had asked some questions above bur screw it: I'm not interested in your answers. You're neither helping to categorize the position not arguing against it. You're merely asserting it's wrong based on the assumption it's wrong with no appeal to common premises. You're wasting my time.

-- Updated May 1st, 2017, 11:41 am to add the following --

Oops, that sentence should have read, "You're neither helping to categorize the position nor arguing against it."

-- Updated May 1st, 2017, 11:50 am to add the following --

I don't think anyone with a third grade reading level or above can reach the "living Constitution" ideology honestly. I think it's not only wrong but dishonest in the sense that the people advocating it know better. Thr only other alternative is that they're dumber than a third grader.
Fooloso4
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Joined: February 28th, 2014, 4:50 pm

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by Fooloso4 »

Warning: if you cannot discuss this in a civil manner the topic will be locked.

BenMcLean:
You need a pre-Griswold source to prove penumbras were not just a word but a legal doctrine prior to Griswold.
From Wiki:
Commentators disagree about the precise origin of the use of the term penumbra in American legal scholarship, but most believe it was first used in the late nineteenth century. Burr Henly, for example, traces the first use of the word to an 1873 law review article written by Oliver Wendell Holmes, in which he argued that it is better for new law to grow "in the penumbra between darkness and light, than to remain in uncertainty". Luis Sirico and Henry T. Greely, on the other hand, trace the term to Justice Stephen Johnson Field's 1871 circuit court opinion in Montgomery v. Bevans, where Justice Field used the term to describe a period of time in which it was uncertain whether an individual could legally be considered deceased. Other commentators, including Glenn H. Reynolds and Brannon P. Denning, note that elements of penumbral reasoning can be found in much older cases that precede the first use of the term penumbra; they trace the origins of penumbral reasoning to United States Supreme Court cases from the early nineteenth century. For example, Reynolds and Denning describe Chief Justice John Marshall's opinion in McCulloch v. Maryland as "the quintessential example of penumbral reasoning".
BenMcLean:

You're appealing to the same authority which is here in dispute to establish its authority.
Yes, I am appealing to a legal definition of a legal term.You may dispute the authority of the judiciary branch of the government, but you cannot question the correctness of a legal term because you question the authority of the law.
Judicial review is deciding what is and isn't law. Do try to keep up.
Judicial review decides when laws are invalid because they are contrary to constitutional law. The judiciary branch does not make laws and can only invalidate laws because the conflict with higher laws.
All opinion which is only opinion and devoid of justification is arbitrary.
Your claim is that the supreme court’s interpretation of the constitution is arbitrary because it is an opinion. The opinion of a supreme court justice is a justified opinion, and so, is not arbitrary.
The learning of the person is not a justification for their opinion.
Right, their learning is what qualifies them to form a justified opinion. It is what they base their opinion on - their knowledge of the law.
A number of ways. One would be habit and another would be emotion.
A legal brief is written in legal language, not emoticons.
OK, so what you're saying is that you disagree with originalism and want to claim that it is incoherent and arbitrary because justices associated with it don't consistentky follow it …
I did not say that. The fact that one is not always true to his principles does not make the principle incoherent and arbitrary.
… "living Constitution" ideological drivel …
When do you imagine the Constitution reached its full, final, and immutable realization?
BenMcLean
Posts: 50
Joined: January 17th, 2012, 11:42 am

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

Commentators disagree about the precise origin of the use of the term penumbra in American legal scholarship, but most believe it was first used in the late nineteenth century. Burr Henly, for example, traces the first use of the word to an 1873 law review article written by Oliver Wendell Holmes, in which he argued that it is better for new law to grow "in the penumbra between darkness and light, than to remain in uncertainty". Luis Sirico and Henry T. Greely, on the other hand, trace the term to Justice Stephen Johnson Field's 1871 circuit court opinion in Montgomery v. Bevans, where Justice Field used the term to describe a period of time in which it was uncertain whether an individual could legally be considered deceased. Other commentators, including Glenn H. Reynolds and Brannon P. Denning, note that elements of penumbral reasoning can be found in much older cases that precede the first use of the term penumbra; they trace the origins of penumbral reasoning to United States Supreme Court cases from the early nineteenth century. For example, Reynolds and Denning describe Chief Justice John Marshall's opinion in McCulloch v. Maryland as "the quintessential example of penumbral reasoning".
OK, this is actually helpful information for a change. You have successfully refuted the claim that "penumbras" as a legal doctrine originated with Griswold. But I can still maintain that all of these instances are incoherent non sequiturs.
Yes, I am appealing to a legal definition of a legal term.You may dispute the authority of the judiciary branch of the government, but you cannot question the correctness of a legal term because you question the authority of the law.
I think we need to distinguish correctness from meaningfulness. It is the meaningfulness of "penumbras" as a legal doctrine which is in dispute, not whether the law books say it or not because they obviously do say it. The question is whether they actually mean anything conceptually valid when they say it.
Judicial review decides when laws are invalid because they are contrary to constitutional law. The judiciary branch does not make laws and can only invalidate laws because the conflict with higher laws.
What you're saying here is very much like saying, "Juries only convict guilty people and only aquit innocent people." Sure, that's how they're supposed to work, but not necessarily how they actually work.
Your claim is that the supreme court’s interpretation of the constitution is arbitrary because it is an opinion.
No, beczuse it is only an opinion, unsupported by what the actual text actually says.
The opinion of a supreme court justice is a justified opinion, and so, is not arbitrary.
Again with the juries only convicting the guilty and only aquitting the innocent. Jury nullification just doesn't exist!

Judicial activism is the SCOTUS equivalent of jury nullification.
Right, their learning is what qualifies them to form a justified opinion. It is what they base their opinion on - their knowledge of the law.
Like how juries base their decisions on their most honest unbiased application of the law to the evidence, and never convict innocent people or aquit guilty people.
A legal brief is written in legal language, not emoticons.
According to this hypothesis, the real communication isn't happening through the text of legal briefs though. What those are doing is just epiphenomena.

By the way, I'm not sure I'd want to go quite this dfar but it seems no more ridiculous than ethical and theological non-cognitivism are.
I did not say that. The fact that one is not always true to his principles does not make the principle incoherent and arbitrary.
Sure sounded like that.
When do you imagine the Constitution reached its full, final, and immutable realization?
Every time the amendment process is completed, until the next amendment process is completed.

-- Updated May 1st, 2017, 2:42 pm to add the following --

Oh and on immutability, this doesn't mean the entire Constitution gets nullified by every amensment. The amendment would need to specify what changes its making to previous text.

-- Updated May 1st, 2017, 2:44 pm to add the following --

What I'm saying is that judicial activism circumvents the Constitution and its amenent process in the same way jury nullification circumvents criminal law.
Fooloso4
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Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by Fooloso4 »

BenMcLean:
OK, this is actually helpful information for a change.
It is the kind of information you should have been familiar with prior to making your claims.
It is the meaningfulness of "penumbras" as a legal doctrine which is in dispute, not whether the law books say it or not because they obviously do say it. The question is whether they actually mean anything conceptually valid when they say it.
It was not in dispute because you did not know what it meant. You did not bother to get a correct legal definition before claiming that the concept is incoherent. Now that you do know what it means you can make an argument for its incoherence but you have not made such an argument.
What you're saying here is very much like saying, "Juries only convict guilty people and only aquit innocent people." Sure, that's how they're supposed to work, but not necessarily how they actually work.
Judicial review is nothing like the claim that juries only convict guilty people and only aquit innocent people. It is a legal process. It would be much closer to the claim that juries are tasked with deciding whether a defendant is guilty or innocent.
No, beczuse it is only an opinion, unsupported by what the actual text actually says.
Of course supreme court decisions are supported by the constitution. You do not seem to know how the process works. You may not agree with their interpretation, but theirs is a learned opinion and yours is not.
When do you imagine the Constitution reached its full, final, and immutable realization?
Every time the amendment process is completed, until the next amendment process is completed.
You have just shown how and why the Constitution is a living document, that a living Constitution is not ideological drivel. It is a document intended to be amended in accord with existing law when it is determined that it must be.
BenMcLean
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Joined: January 17th, 2012, 11:42 am

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

Fooloso4 wrote:It is the kind of information you should have been familiar with prior to making your claims.
I'm not convinced of that. What you've pointed out seems like minor historical trivia.

It was not in dispute because you did not know what it meant. You did not bother to get a correct legal definition before claiming that the concept is incoherent. Now that you do know what it means you can make an argument for its incoherence but you have not made such an argument.
You have not shown an incorrect definition. Only an incorrect date.
Judicial review is nothing like the claim that juries only convict guilty people and only aquit innocent people.
Sure. But I didn't say that about judicial review. I said that about your descriptions.
It would be much closer to the claim that juries are tasked with deciding whether a defendant is guilty or innocent.
Go back and​ read what you said. You didn't merely say the SCOTUS was tasked with basing their decisions on the Constitution. You said they actually do so.
Of course supreme court decisions are supported by the constitution.
See? You didn't just say they're tasked with this. You said they're actually doing it. That is analgous to denying the existence of jury nullification like I said.
You have just shown how and why the Constitution is a living document, that a living Constitution is not ideological drivel. It is a document intended to be amended in accord with existing law when it is determined that it must be.
Through the amendment process only, which was deliberately engineered to be extremely difficult for any party to achieve. We aren't going to see any more amendments now because the same effect is achievable by arbitrary fiat from activist justices. This comment of yours shows you're ignorant of the difference between the "living Constitution" and originalist schools of thought.
Fooloso4
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Joined: February 28th, 2014, 4:50 pm

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by Fooloso4 »

BenMcLean:
I'm not convinced of that. What you've pointed out seems like minor historical trivia.
It was supposed to be the critical turning point according to you. Now that it has been shown that the term was already in use you claim it is minor historical trivia. It was a basic premise of your claim about the beginning of the end as you saw it. It was an important fact until it turned out it was not a fact.
You have not shown an incorrect definition. Only an incorrect date.
You did not know the correct definition of penumbra and rejected it when I cited it.
See? You didn't just say they're tasked with this. You said they're actually doing it. That is analgous to denying the existence of jury nullification like I said.
Stop throwing around legal terms you do not understand. Claiming that the Supreme Court bases their decisions on the Constitution is not analogous to denying the existence of jury nullification. Jury nullification has to do with a jury’s refusal to render a decision in accord with the law:
A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.
Jury nullification is a discretionary act, and is not a legally sanctioned function of the jury. It is considered to be inconsistent with the jury's duty to return a verdict based solely on the law and the facts of the case. The jury does not have a right to nulification, and counsel is not permitted to present the concept of jury nullification to the jury. However, jury verdicts of acquittal are unassailable even where the verdict is inconsistent with the weight of the evidence and instruction of the law. (https://www.law.cornell.edu/wex/jury_nullification)
This comment of yours shows you're ignorant of the difference between the "living Constitution" and originalist schools of thought.
I am well aware of the difference. The point is that the Constitution has not reached its full, final, and immutable realization and was never intended as such. I have not discussed originalism because I do not know what version of it you hold or if you have an adequate understanding of it. Your calling interpretation of the Constitution mere opinion suggests that you don’t have an adequate understanding of it. Originalism has to do with how the Constitution is to be interpreted. “Judicial activism” also has to do with how the Constitution is to be interpreted.

What originalism does not address is the hermeneutical problem. You have assumed that some form of originalist interpretation is both possible and preferable to the alternative. You have demonstrated neither. All that you have done is misuse legal terms such as "penumbras", "judicial review", and "jury nullification" and made an incoherent argument about legal incoherence.
BenMcLean
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Joined: January 17th, 2012, 11:42 am

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

Fooloso4 wrote: It was supposed to be the critical turning point according to you. Now that it has been shown that the term was already in use you claim it is minor historical trivia.
Yes, because the facts you brought up only change when it happened, not whether it happened. I did say it could be earlier in my original post.
You did not know the correct definition of penumbra and rejected it when I cited it.
You're claiming that "penumbras" are the same thing as implication. Implication works by necessity. Penumbras don't: not even if every law book in the world says they do.
Claiming that the Supreme Court bases their decisions on the Constitution is not analogous to denying the existence of jury nullification.
Yes it is.
Jury nullification has to do with a jury’s refusal to render a decision in accord with the law:
I accept that description of jury nullification and that description only seems to support what I said, not to discredit it.
I am well aware of the difference. The point is that the Constitution has not reached its full, final, and immutable realization and was never intended as such.
The fact that you'd find the second sentence relevant to mention at this point suggests that you think that is some​ sort of refutation of originalism, which would shoe that you haven't actually grasped the concept.
Your calling interpretation of the Constitution mere opinion suggests that you don’t have an adequate understanding of it.
I'm saying that only about non-originalist "interpretation" which I'm claiming is actually fabrication posing as interpretation, not genuine interpretation.
Fooloso4
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Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by Fooloso4 »

BenMcLean:
Yes, because the facts you brought up only change when it happened, not whether it happened. I did say it could be earlier in my original post.
So, when did it happen? 1871? 1873? Are you claiming that “words don’t mean anything" after 1871? If the term was already in use what is the significance of Griswold?
You're claiming that "penumbras" are the same thing as implication. Implication works by necessity. Penumbras don't: not even if every law book in the world says they do.
First, implications do not work by necessity. Implications are not logical deductions. Second, penumbras are by definition implications. They are implied rights. If implied means by necessity then they are rights that necessarily follow from other rights.
Claiming that the Supreme Court bases their decisions on the Constitution is not analogous to denying the existence of jury nullification.
Yes it is.
Well, that settles that, doesn’t it? Several times you have responded in this way. If you make such claims then you need to back them up. Just saying "yes it is" gets us nowhere.
I accept that description of jury nullification and that description only seems to support what I said, not to discredit it.
What does the claim that the Supreme Court bases its decisions on Constitutional law have to do with denying jury nullification?
The fact that you'd find the second sentence relevant to mention at this point suggests that you think that is some​ sort of refutation of originalism, which would shoe that you haven't actually grasped the concept.
It has nothing to do with originalism. As I said, I have not discussed originalism because I do not know what version of it you hold or if you have an adequate understanding of it. Originalism is just another term you have tossed out without understanding it. There are different versions of originalism based on different interpretative theories. The point is that the Constitution must be interpreted. It is a document that was never intended to reach a full, final, and immutable state. If you are going to insist on an originalist interpretation then you need to identify the theory and assumptions the the version of originalism you hold.

How does your version of originalism deal with technological advances and social change? What does the Constitution say about cell phones and personal computers? What does it say about gender identity and same sex marriage?
I'm saying that only about non-originalist "interpretation" which I'm claiming is actually fabrication posing as interpretation, not genuine interpretation.
Once again, you seem to have missed what is at issue with regard to originalist interpretation and more generally the hermeneutical problem. You dismiss “penumbra of emanations” without understanding what it means. How does an originalist interpretation deal with the implications of explicit law?

The irony here is that you are attempting to argue for "legal non-cognitivism" and originalism. The Supreme Court includes originalists and those who reject originalism, but the rejection of originalism is not some form of "legal non-cognitivism", and the originalist members of the court are able to communicate in legal terms with those who are not. Legal language is not incoherent because you hold to some form of originalism you have not been able to articulate.
BenMcLean
Posts: 50
Joined: January 17th, 2012, 11:42 am

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

What does the Constitution say about cell phones and personal computers?
Nothing. Computer files/data on the other hand could be reasonably defined as papers -- just "digital papers."
What does it say about gender identity and same sex marriage?
Nothing whatsoever, and everyone who has read it knows this. The Tenth Amendment leaves this up to the states and the people.

-- Updated May 3rd, 2017, 11:17 am to add the following --

By the way, what do you think the Constitution says about pedophile marriage?
Fooloso4 wrote: So, when did it happen? 1871? 1873? Are you claiming that “words don’t mean anything" after 1871?
In decisions based on precedents from "penumbras", words don't mean anything. Not all decisions would be based on that precedent, because not everyone went insane all at once.
First, implications do not work by necessity. Implications are not logical deductions.
You seem to be admitting to my premises here, that the kinds of "implications" called "penumbras" are not logical deductions and are instead incoherent.
If implied means by necessity
You just denied this a few sentences back.
Well, that settles that, doesn’t it? Several times you have responded in this way. If you make such claims then you need to back them up. Just saying "yes it is" gets us nowhere.
You didn't give a reason for saying it's not, and I did previously give a reason for saying it is that you hadn't addressed. They are analgous because they can both ignore and circumvent the task they were set to decide according to the law and can instead decide based on their own will.
There are different versions of originalism based on different interpretative theories. The point is that the Constitution must be interpreted. It is a document that was never intended to reach a full, final, and immutable state.
But it was a document that was never intended to change state without amendment!

A law that can change its meaning without changing its text is no law at all.
Fooloso4
Posts: 3601
Joined: February 28th, 2014, 4:50 pm

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by Fooloso4 »

BenMcLean:
Nothing. Computer files/data on the other hand could be reasonably defined as papers -- just "digital papers."
Yes, by use of penumbra.
Nothing whatsoever, and everyone who has read it knows this.

Right, and that is the point.
In decisions based on precedents from "penumbras", words don't mean anything. Not all decisions would be based on that precedent, because not everyone went insane all at once.
You are going to have to cite specific decisions if you are to be taken seriously. Otherwise it is just a vague, unsubstantiated claim.
You seem to be admitting to my premises here, that the kinds of "implications" called "penumbras" are not logical deductions and are instead incoherent.
If something is not a logical deduction that does not mean it is incoherent. If it did then everything you have said would be incoherent.
If implied means by necessity
You just denied this a few sentences back.
It is your premise. I pointed out what follows for that premise. What follows is that penumbra or implied rights would necessarily follow from other rights. What follows is that your other premise - that penumbra lead to incoherence, would be false.
They are analgous because they can both ignore and circumvent the task they were set to decide according to the law and can instead decide based on their own will.
You have not shown that the Supreme Court circumvents the task they were set to decide according to the law. That is something that requires evidence from specific cases if you are to be taken seriously.
But it was a document that was never intended to change state without amendment!
If a rights follows by implication from existing rights then there is no change in the “state” of the Constitution.
A law that can change its meaning without changing its text is no law at all.
The Supreme Court decides the meaning of the law. The problem of interpretation of the law is as old as the law itself. Even within the interpretative world of originalism there are differences of opinion both with regard to basic interpretive premises and how cases are to be decided.

This is going nowhere. I think we are done here. At least I am.
BenMcLean
Posts: 50
Joined: January 17th, 2012, 11:42 am

Re: Heard of a "legal non-cognitivism" that isn't anarchism?

Post by BenMcLean »

Fooloso4 wrote:Yes, by use of penumbra.
Citation needed.
Right, and that is the point.
An valid argument which uses logical implication cannot contain terms in its conclusion which don't appear in its premises.
If something is not a logical deduction that does not mean it is incoherent. If it did then everything you have said would be incoherent.
Oh I meant rationally/logically incoherent, not linguistically incoherent.
It is your premise. I pointed out what follows for that premise. What follows is that penumbra or implied rights would necessarily follow from other rights.
No, that does not follow. A "right" to murder babies does not follow logically from a right to privacy, and a "right" to force artists to publicly support your political cause on the threat of losing their freedom to operate a business does not follow logically from a "right" to force a change in the definition of marriage on an unwilling populace, and a "right" to force a change in the definition of marriage on an unwilling populace does not follow logically from an amendment passed in 1868.
The Supreme Court decides the meaning of the law.
So because the SCOTUS says it, it therefore must be true. Caesar can do no wrong.
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